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Short answer, which will lead to a somewhat brief explanation: maybe.

The current state of Minnesota’s DWI Refusal law certainly makes the title of this blog an interesting question. Refusing a blood or urine test is a great idea, if the Minnesota Supreme Court upholds Trahan and Thompson. Refusing a breath test may be an equally good idea if the United States Supreme Court reverses Bernard. In the meantime, what do you do?

My general rule of thumb is if you are super drunk,[1] it is probably a good idea to refuse the test. Why? For first-time DWI offenders, some civil consequences, such as loss of driver’s license and license plates can be less severe if you refuse than if you take the test and measure .16 or more. The problem: we do not all have crystal balls and it is often difficult to know what level you will be without actually taking the evidentiary test. Knowing, or finding out, your preliminary breath test (PBT) result can be helpful. Assuming you took the PBT.[2] Other facts can be helpful to know, such as how much you drank and over what period of time.

If you have a prior DWI, or license revocation for alcohol, within the past ten years, then the question of whether you should submit to the evidentiary test becomes more interesting. In this scenario, refusing the test triggers a vehicle forfeiture. Are you willing to give up your vehicle and put your faith in the recent DWI Refusal challenges in hopes of getting your car back? Again, the answer depends on what your alcohol concentration is likely to be. If you think it is going to be under .16 and you really want to keep the vehicle you were driving at the time, then taking the test is generally the better idea.

Confused? Even if your answer is no, you get an opportunity to consult with an attorney before deciding whether the take the evidentiary test. After an officer places you under arrest for DWI, they will read you the Minnesota Implied Consent Advisory (ICA).[3] As part of the ICA, the officer must tell you that you have the right to consult with an attorney. At the end of the ICA, the officer will ask you whether you will take one of the following tests: breath, blood, or urine.[4]

Consulting with an attorney before making your decision to take a test can be very helpful. Minnesota’s DWI laws are frequently changing, therefore talking to a lawyer who understands the nuances in this arena can help you even further. For a free consultation, please contact Ambrose Law Firm at 612-547-3199 or email: ambroselegal@icloud.com.

Robert H. Ambrose is a criminal defense attorney in Minneapolis, Minnesota. He has a Lead Counsel Rating in Drunk Driving Defense; is one of Minnesota’s “Ten Best” DWI Attorneys for Client Satisfaction; and is a member of the National College for DUI / DWI Defense. St. Paul criminal defense attorney; DWI lawyer St. Paul; and St. Paul criminal defense lawyer.

[1] My definition of super drunk is at least twice the legal limit (.16 or more).

[2] For a discussion on whether you should take the PBT and other field sobriety tests, read our blog here.

[3] Minn. Stat. §169A.51, subd. 2.

[4] This is the evidentiary test. It is the one the state will use to charge you with DWI solely because of your alcohol concentration level, if it results in .08, or .16, or more. A first-time DWI with an alcohol concentration of .08 or more is a Fourth Degree DWI and is a misdemeanor offense. Minn. Stat. §169A.20, subd. 1(5). Having an alcohol concentration of .16 or more is an aggravating factor, which for first-time offenders is a Third Degree DWI and is a gross misdemeanor offense. Minn. Stat. §169A.03, subd. 3(2). For a further discussion on Minnesota’s new DWI law making .16 or more an aggravating factor, read our post here.

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